SZLRX v Minister for Immigration
[2008] FMCA 895
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLRX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 895 |
| MIGRATION – Application to reinstate application for judicial review – whether prospects of success. |
| Federal Magistrates Court Rules 2001, r.13.03A(c) |
| Applicant: | SZLRX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3685 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 June 2008 |
| Date of last submission: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3685 of 2007
| SZLRX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
There comes before me this morning an application by the applicant in substantive proceedings to review a decision of the Registrar dismissing the matter pursuant to Part 13 r.13.03A(c) of the Federal Magistrates Court Rules 2001 on the grounds that there was no appearance by the applicant at the directions hearing.
The applicant seeks that I reinstate his application. In support he has filed an affidavit dated 26 May 2008, which states:
“(1) I am the applicant in this matter. I was not able to present in the direction hearing [sic] in this matter as I do not read English and there was no one with me to translate the letter for me.
(2) I now understand that I missed the direction hearing and wish to come before court for direction.
(3) I would be grateful if this matter is reinstated for further hearing to determine the jurisdictional error by the Tribunal.”
The application, which was filed in this court on 29 November 2007, was typewritten and signed, purportedly by the applicant. It is accompanied by an affidavit, also typewritten and signed, purportedly by the applicant. The application cites three grounds. The first is that the Tribunal denied the proper application of law to the applicant. The second is that the Tribunal denied natural justice to the applicant. The third is that the Tribunal did not follow due procedure. None of these claims is particularised in any way.
When he appeared before me this morning, the applicant told me that his work permission had expired and he has no job, which is a big problem for him. He told me that he had lodged his appeal in order to get approval for work. He told me that he had been badly let down by his solicitor, who had taken money but had not done anything. No evidence of this matter was brought before me.
In order to decide whether a matter such as this should be reinstated, the court must look at the grounds upon which the applicant's failure to attend is explained. It must then look at whether there is any meaningful ground of application so as to indicate that there may be some prospects of success in proceedings. The barrier is not very high, but a case in which there is clearly no prospects of success would be futile to reinstate.
The applicant has not really provided me with much assistance in relation to the first matter. The respondent did not wish to cross-examine him, and therefore I can accept that he does not read English and that there was no one to translate the letter for him. The difficulty I have with that statement, of course, is that the first court date before the Registrar was not advised to the applicant in a letter but was written on the application itself. I can only assume, and the applicant has not told me to the contrary, that he was the person who attended the court, applied for the fee waiver and filed the application. Details about the first court date are clearly written on the third page of the application and would, to my mind, have been obvious to the applicant. I am therefore unable to accept the excuse provided by him.
The second ground upon which I propose to dismiss this application is that I cannot see that it has any prospects of success. The applicant's ground for claiming to be a person to whom Australia owed protection obligations arose out of his claimed bisexuality. This matter was raised before the delegate and certain photographs were provided to the delegate. The delegate's decision is detailed and found at [CB33]-[38]. A copy was provided to the applicant's advisor. The issues there would have been clear to the advisor and he could have made them available to the applicant. Although the applicant criticises his advisor, I have no evidence that he was not told the grounds upon which the delegate declined to issue a protection visa.
When the applicant made his application for review to the Refugee Review Tribunal he was therefore taken to know what the difficulties were that he faced in persuading a Tribunal that he was a genuine refugee. He would have known that his best opportunity to persuade the Tribunal would be to have attended the hearing. Indeed, the standard form of hearing notification letter advises him that the Tribunal was unable to make a favourable decision on the information before it alone and invited him to attend a hearing for the purpose of presenting evidence and arguments. The applicant did not attend the Tribunal hearing. In the circumstances the decision of the Tribunal that it could not be satisfied that the claims made by the applicant were genuine was inevitable.
That being the case, there is no power in this court to provide the review on the basis of some different reading of the applicant's situation, which is what I suspect he will ask the court to do. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $700.00.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 1 July 2008
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